U-Start @ Muhammad Haniff's Site

Like the military commissions of the Second World War, the trials of Guantanamo Bay detainees have little to do with justice

Saturday, March 01, 2008 

Canadians should be seriously concerned about the Guantanamo Bay prison camp. One key reason is that "Gitmo" is one of the key factors that drives radicalization among aspiring jihadists here in Canada and around the world. Another reason is that inmate Omar Khadr may actually be innocent of the main charge of murder as a war crime. Additionally, the concept of trying a child soldier as a war criminal is a highly dubious process. 

An increasing number of myths are being circulated about the Omar Khadr case. Among them are that the U.S. soldier who was killed on that fateful day was functioning as a medic. In fact, he was not. 

The individual in question was a special forces soldier who was functioning as part of an assault mission. Like many other special forces soldiers, he had training as a medic. 

We have been told about an "eye witness" account, but it appears that the eye witness was not actually in a position to see the events. And we were told that Omar Khadr was the only insurgent to survive the extended attack. But now it appears that at least one other survivor emerged. 

Most interestingly of all, there is apparently no autopsy report that describes how the U.S. soldier died a few weeks after the battle, or what killed him. The information and evidence being produced in this case is even more suspect, given that the collection of it did not begin until about two weeks after the event occurred. 

There is no legal or pragmatic reason for the military commissions to exist at this point. There is no war occurring that could affect the capabilities of the U.S. civilian courts and these civilian courts have repeatedly shown themselves capable of producing convictions in terrorism-related cases.

A fair and open court case serves not only the interests of justice, but would also serve to remove the jihadists' capability to use Guantanamo Bay as a radicalization tool. 

The military commissions of the Second World War were implemented to hide the incompetence of the FBI and other agencies who had botched the case of German submarine-borne saboteurs. Eight German saboteurs were caught only because their leader turned himself in to American authorities and another member of the team deliberately left a trail of evidence behind him to ensure his capture. The military commissions, however, portrayed this dismal affair as a great success to assure the American people of the competence of their "homeland security" personnel. Déjà vu? 

The Guantanamo Bay trials and the Soviet show trials of the 1930s have many factors in common as well. This is probably not an accident. In both cases, the objective of the trial is not to determine guilt or innocence, but rather to provide retributive justice. 

At the same time, the trials are designed to justify and protect the illegal actions such as torture that led to the trials in the first place. It is not clear who in the U.S. is driving the trials, but it appears that Vice0President Dick Cheney and his staff are clear supporters. As well, the Department of Justice appears to be providing extensive support, which suggests officials there have reasons to push for convictions. Is this to somehow hide or justify their previous positions on torture and other abuses? 

The Soviet show trials' chief prosecutor was Andrey Vyshinsky. His three main dubious ideas on justice were expressed in his book The Theory of Legal Evidence in Soviet Law. The first idea was that the "confession was the queen of all evidence" (no matter how it was obtained). His next idea was that the rules of justice were flexible depending on the needs of the authorities at the time. The presumption of innocence, he further argued, could only have a demobilizing effect in the fight against crime. 

The rules of the current military commissions appear to be much the same. Confessions will be used, although it appears that no information about how the confessions were obtained will be entered. Nor will disclosure or discovery be used to determine how the confessions came about. Third-party hearsay evidence may also be allowed, depending on whether it is deemed to be reasonable by the judge. 

According to Col. Morris Davis, who is a former chief prosecutor of the military commissions, it appears that the plan was made ahead of time to have no acquittals, no matter what the evidence was to reveal. General counsel William Haynes is quoted as saying (according to Col. Davis) "We can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? ... We've got to have convictions." 

Just like the military commissions of the Second World War, the current commissions are being run to put a veneer of respectability over incompetence, poor decision making and the complete loss of due process. How will the trials play themselves out? Unlike the Soviet show trials, there is still a functioning free press, so at least some aspects of the trials will be visible. 

One thing is clear, the kind of experience that criminal defence lawyers have in normal cases will be of little value here. 

The defence will, of course, attack the limited value of the evidence to be presented. But the key points of the trial will be in how the defence deals with intelligence process that has attempted to create the "evidence" being used, and how the defence attacks the intelligence structures that lie behind the processes. While this may sound similar to a normal criminal trial, the "wilderness of mirrors" that is the intelligence world bears no comparison to criminal procedures in a civilian court. 

It is my view that the trials may produce a number of acquittals if they go ahead. This is especially true with respect to the minor opening cases such as that of Omar Khadr. He and others are the appetizers being served up before the main courses. 

The intelligence community was never designed to produce evidence, and experience has shown that such capabilities are limited under even favourable circumstances. The legal process is the search for justice. Intelligence is the process to explain the known and estimate both the unknown and unknowable. One is about facts, the other is about probabilities. 

Whatever the situation, it appears increasingly likely that Omar Khadr will return to Canada within a year. He may do so if the Guantanamo Bay facility is finally closed, if his trial results in an acquittal, or if he returns to serve out "short time" in a Canadian jail after a conviction on one of the minor charges. Dealing with his return should be under consideration now. 

Tom Quiggin is a Canadian court appointed expert on jihadism and is currently assisting in the training of the defence lawyers for the Guantanamo Bay military commissions.

© The Ottawa Citizen 2008